Previously cited as “the case that could shut down the internet“, Roadshow Films Pty Ltd v iiNet Ltd[2012] HCA 16 (commonly known as AFACT v iiNet or the iiTrial) concluded with a unanimous decision from the Australian High Court ruling that the iiNet, an internet service provider, was not liable for copyright infringement from BitTorrent peer-to-peer file-sharing.

Three questions, largely of fact, determined the outcome of this case. First, whether iiNet had the power to prevent primary infringements committed through BitTorrent use. Second, whether reasonable steps, such as warnings and suspension or termination of infringing accounts, were taken to prevent these infringements. And lastly, whether and to what extent the relationship between iiNet and its customers have bearing on these questions.

The Court observed that while the relationship between iiNet and its customers involved the provision of technology, iiNet had no direct power to prevent primary infringements through technical power and could only ensure that result indirectly by terminating customer contracts. Furthermore, the inaction from iiNet resulting from AFACT’s notices was not due to indifference but rather unwillingness to act based solely on information provided from AFACT.

The case at hand demonstrates a significant departure from what Matthew Rimmer called a “controversially broad approach taken by courts” concerning authorization of copyright infringement. Indeed, a host of earlier cases found intermediaries liable. In Telstra Corp v Australasian Performing Right Association[1997] HCA 41, the High Court held Telstra, a telecommunications carrier, directly liable for the playing of music by its subscribers to their clients despite the fact that Telstra had no control over the content of the music played.

iiNet had submitted safe harbour defences, which would have been successful at the trial level had authorization of infringement been found, but were later dismissed by the Full Court, stating that iiNet had not satisfied the conditions necessary to attract the benefits of the provision.